Face Masks Should be the Law – Joseph D. Steinfield

IN THE PRESS · November 16, 2020

When I got my driver’s license, in 1955, seat belts had been invented, but cars didn’t have them. A federal law passed in 1968 required seat belts in all new cars, and beginning with New York in 1984, states passed laws requiring seat belt usage. Today, every state but one has such a law. New Hampshire only requires you to use a seatbelt if you are under 18.

As for cell phones, widespread usage did not begin until the 1980s, creating a new hazard known as “distracted driving.” Today, nearly every state has some sort of law controlling the use of cell phones by drivers, and New Hampshire prohibits all drivers from using handheld devices. According to the National Highway Traffic Safety Administration, distracted driving accounted for 2841 deaths in 2018.

While New Hampshire is out of step when it comes to seat belts, there is at least a plausible distinction between that subject and cell phones. In the one case, the immediate risk is mostly on the person who chooses to drive (or ride) without restraint, while the driver jabbering or texting away while holding a cell phone endangers both himself and the rest of us. One is mostly one directional, while the other goes both ways.

Unsurprisingly, lawsuits have challenged these laws, claiming that they interfere with individual freedoms. Such objections have been routinely rejected by courts around the country on the basis that the interests of public safety override such legalistic obstructionism.

Last August, the Keene City Council adopted a mask ordinance requiring everyone ten or older to wear masks in all indoor public spaces and some outdoor spaces as well. This law, which will remain in effect until the Governor declares that a State of Emergency no longer exists, imposes modest fines beginning with the third offense, so it doesn’t have a lot of teeth. But experience tells us that even a difficult to enforce rule, jaywalking comes to mind, is likely to gain public acceptance.

As of a few days ago, the count of reported Covid-19 cases in Cheshire County stood at 261 out of a state total of over 12,000. That comes out to about 2% in a county with over 5% of the state population. I can’t prove it, but I would be willing to bet that without the Keene ordinance, the number would be higher.

Keene is not alone. Concord, Nashua, Portsmouth, Hanover, Lebanon, and a handful of smaller New Hampshire towns have enacted mask mandates. The problem is that the virus doesn’t respect city or county lines, or any other geographic boundary. And while the pandemic is a lot worse in the Midwest and West right now, and while a vaccine may be on the not-too-distant horizon, New Hampshire has moved from yellow to orange on the map, meaning that new cases per 100,000 people have increased.

The CDC recently announced that face masks protect not just other people but the wearer as well. In that sense, a law mandating mast-wearing has a two-directional benefit, like the handheld cellphone law. But to stave off what seems inevitable over the coming months, public health requires more than a local ordinance.

Thirty-four states and the District of Columbia currently require face coverings in public. That number includes all the New England states except one outlier, New Hampshire. We are keeping company with Nebraska, North and South Dakota, Iowa, and several other states that have gone from orange to red.

More than a hundred years ago, the Supreme Court rejected the claim that a mandatory vaccination law offended the Fourteenth Amendment. “The liberty secured by the Constitution,” the Court said, “does not import an absolute right in each person to be … wholly freed from restraint.” And, the Court went on, “a community has the right to protect itself against an epidemic of disease.” The New Hampshire Supreme Court followed that decision in 1937 when it upheld a school vaccination law. And this past July a Superior Court judge did the same and upheld the Nashua mask ordinance.

Meanwhile, cases are pending in Wisconsin and elsewhere challenging the state’s power to require people to wear masks in public places. These cases are likely to fail. But what we really need is a nationwide mandate, not a state-by-state hodgepodge of conflicting rules. There are two ways this might be done, one by the Executive Branch, the other by Congress. The latter approach would likely rest on firmer constitutional footing.

Would a national law hold up against a challenge that it inhibits the constitutional right to worship, or that it forces people to convey a message they don’t believe, or that it compels individuals to engage in a particular activity in violation of the commerce clause? Each of these theories carries plausibility in varying degrees, but at the end of the day they should fail.

In recent months, the Supreme Court has declined to take up appeals from various court decisions that have denied challenges to local short-term anti-virus regulations. More likely than not, Chief Justice Roberts and at least four more Justices would decide that Congress has the power to enact a mask requirement designed to reduce infections and deaths from the coronavirus epidemic.

Until we have an effective, universally administered vaccine, this public health crisis is a lot more serious than distracted driving.

 

 

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Attorney Joseph D. Steinfield of Keene, can be reached at joe@joesteinfield.com

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